THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
DENNIS TOWNSELL, Appellee.

Opinion filed April 15, 2004.

JUSTICE THOMAS delivered the opinion of the court:

The issue presented is whether an Apprendi claim that is waived
pursuant to a guilty plea may nevertheless be considered on appeal under
the plain error exception to the waiver rule. We hold that it may not.

BACKGROUND

In exchange for the State seeking neither the death penalty nor a
mandatory life sentence, defendant, Dennis Townsell, pleaded guilty to
first degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(a)(1)). A
sentencing hearing was held, and the circuit court of Rock Island County
imposed an extended-term sentence of 100 years in prison. The
extended-term sentence was based on the trial court's finding that
defendant's offense was "accompanied by exceptionally brutal or heinous
behavior indicative of wanton cruelty" (Ill. Rev. Stat. 1991, ch. 38, par.
1005-5-3.2(b)(2)).

On appeal, the appellate court reduced defendant's sentence to 60
years, finding that the imposition of an extended-term violated the United
States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S.
466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). 336 Ill. App. 3d 340.
In so ruling, the appellate court initially acknowledged that, under this
court's decision in People v. Jackson, 199 Ill. 2d 286, 302 (2002),
defendant's guilty plea waived any Apprendi-based claims. 336 Ill. App.
3d at 343. The court then held, however, that an Apprendi violation is so
significant as to constitute plain error, which is an exception to the waiver
rule under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)).
Consequently, the appellate court reached the merits of defendant's
Apprendi claim, vacated his extended-term sentence, and imposed a
nonextended term of 60 years in prison. 336 Ill. App. 3d at 346.

It is well established that a voluntary guilty plea waives all
nonjurisdictional errors or irregularities, including constitutional ones.
People v. Peeples, 155 Ill. 2d 422, 491 (1993). In People v. Jackson,
199 Ill. 2d 286 (2002), this court was asked to decide whether the
"errors or irregularities" waived by a guilty plea include Apprendi-based
sentencing claims. In answering this question, Jackson began by
acknowledging that, under Apprendi, "[e]very fact necessary to establish
the range within which a defendant may be sentenced is an element of the
crime and thus falls within the constitutional rights of a jury trial and proof
beyond a reasonable doubt." Jackson, 199 Ill. 2d at 296. Nevertheless,
by pleading guilty, "a defendant waives exactly those rights." (Emphasis
in original.) Jackson, 199 Ill. 2d at 296. Indeed, "[a] knowing
relinquishment of the right to a trial by jury is the sine qua non of a guilty
plea." Jackson, 199 Ill. 2d at 296. Jackson therefore concluded that
"Apprendi-based sentencing claims cannot be heard on appeal from a
guilty plea." Jackson, 199 Ill. 2d at 296.

In rejecting Jackson's seemingly unequivocal holding, the appellate
court expressed its discomfort with the fact that, under Jackson, a
defendant can be deemed to have waived an Apprendi-based claim even
though he entered his guilty plea long before Apprendi was decided.
According to the appellate court:

"Townsell would prevail on his Apprendi claim if he had
proceeded to trial rather than pleading guilty. He would prevail
because extension of his sentence offended substantial
constitutional rights. We cannot in good conscience reach a
different result merely because he pled guilty. We realize that he
relinquished the rights upon which Apprendi is based when he
entered his plea. However, the dispositive nature of that
relinquishment is questionable because the plea occurred long
before Apprendi was decided. How can we say that Townsell
really waived his right to a procedure that remained unprescribed
for another decade?" 336 Ill. App. 3d at 345-46.

For these reasons, the appellate court "opt[ed] to forgo the administrative
convenience of a waiver" and addressed defendant's Apprendi argument
on the merits. 336 Ill. App. 3d at 346.

The fatal flaw in the appellate court's analysis rests in the assumption
that the procedures outlined in Apprendi "remained unprescribed" until
Apprendi was decided in 2000. Nothing could be further from the truth.
In Jackson, this court clearly explained that:

"Apprendi did not deal with novel constitutional rights. Rather,
the Court was concerned with the applicability and reach of the
well-established constitutional rights to a jury trial and proof
beyond a reasonable doubt, rights which a guilty plea is
specifically designed to waive." (Emphasis added.) Jackson,
199 Ill. 2d at 302.

Similarly, in Hill v. Cowan, 202 Ill. 2d 151 (2002), this court specifically
rejected "the complaint that a defendant did not 'know' that he was
waiving the right to have the State prove enhancing factors beyond a
reasonable doubt, because by pleading guilty the defendant releases the
State from proving anything beyond a reasonable doubt." (Emphasis in
original.) Hill, 202 Ill. 2d at 154. Again, "[a] knowing relinquishment of
the right to a trial by jury is the sine qua non of a guilty plea." Jackson,
199 Ill. 2d at 296. Accordingly, "Apprendi-based sentencing objections
cannot be heard on appeal from a guilty plea." Jackson, 199 Ill. 2d at
296.

It is worth noting that, whatever the merits of its Apprendi analysis,
the appellate court's invocation of Supreme Court Rule 615(a) is entirely
out of place in this context. Rule 615(a) is concerned with waivers that
result from failing to bring an error to the trial court's attention. Under that
Rule, "[p]lain errors or defects affecting substantial rights may be noticed
[on appeal] although they were not brought to the attention of the trial
court." 134 Ill. 2d R. 615(a). In relation to a guilty plea, by contrast,
"waiver" refers to the " 'voluntary relinquishment of a known right.' " Hill,
202 Ill. 2d at 158-59. Thus, in Jackson and Hill, the defendants'
Apprendi claims were deemed waived not because the defendants failed
to bring those claims to the trial court's attention but because the
defendants voluntarily relinquished all of the constitutional rights upon
which those claims are based. Hill, 202 Ill. 2d at 158-59. Significantly,
Rule 615(a) in no way speaks to waivers of the Jackson and Hill
variety-i.e., voluntary relinquishments of known rights. As a result, the
appellate court had no authority to "forgo the administrative convenience
of waiver" and reach the merits of defendant's Apprendi claims, as
"administrative convenience" has absolutely nothing to do with the waiver
at issue in this case.

In sum, we meant precisely what we said in Jackson: "Apprendi-based sentencing objections cannot be heard on appeal from a guilty
plea." Jackson, 199 Ill. 2d at 296. Moreover, Rule 615(a) does not
speak to waivers that result from the voluntary relinquishment of known
rights, as in the case of a guilty plea. For both of these reasons, the
appellate court erred in using Rule 615(a)'s plain error rule as a means of
reaching defendant's Apprendi-based sentencing claims.

CONCLUSION

For the foregoing reasons, the judgment of the appellate court is
reversed and the judgment of the circuit court is affirmed.

Appellate court judgment reversed;

circuit court judgment affirmed.

JUSTICE KILBRIDE, dissenting:

I cannot join the majority opinion for two reasons. First, as stated by
the appellate court, defendant pleaded guilty to first degree murder,
charged solely under section 9-1(a)(1) of the Criminal Code of 1961 (Ill.
Rev. Stat. 1991, ch. 38, par. 9-1(a)(1), now codified as 720 ILCS
5/9-1(a)(1) (West 2000)). Neither "brutal or heinous" behavior under
section 5-5-3.2(b)(2) (Ill. Rev. Stat. 1991, ch. 38, par.
1005-5-3.2(b)(2)) nor any other aggravating factor was alleged in the
charging instrument or submitted to and proved to a jury beyond a
reasonable doubt. Accordingly, defendant was only eligible for a 60-year
term of imprisonment. See Ill. Rev. Stat. 1991, ch. 38, par.
1005-8-1(a)(1)(a). I agree with the appellate court that section
5-5-3.2(b)(2) "essentially create[d] a new offense (brutal or heinous first
degree murder) that [was] separate from, and more severe than, ordinary
first degree murder." 336 Ill. App. 3d at 346. But, defendant was not
charged with "brutal and heinous" first degree murder. He was charged
with simple first degree murder and he pleaded guilty only to that specific
offense. In affirming defendant's extended-term sentence, the majority
inexplicably sanctions the imposition of a penalty for an uncharged offense
that was more severe than the offense that was actually charged. See Hill
v. Cowan, 202 Ill. 2d 151, 163 (2002) (Kilbride, J., dissenting upon
denial of rehearing).

Second, under Apprendi v. New Jersey, 530 U.S. 466, 490, 147
L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000), "[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt." Apprendi applies retroactively
to all cases that were still pending on direct review, as this one was, when
the decision was issued. People v. Ford, 198 Ill. 2d 68, 72-73 (2001).
Therefore, for the reasons expressed in Chief Justice Harrison's dissent
in People v. Jackson, 199 Ill. 2d 286, 302-08 (2002) (Harrison, C.J.,
dissenting, joined by Kilbride, J.), the majority's assertion that defendant
waived his right to challenge the extended-term portion of his sentence by
pleading guilty is also flawed. In Illinois, a statute held unconstitutional is
considered void ab initio. People v. Gersch, 135 Ill. 2d 384, 399
(1990). It is as if the law never existed. Accordingly, there was no
statutory authority for the extended-term portion of defendant's sentence.
Jackson, 199 Ill. 2d at 304 (Harrison, C.J., dissenting, joined by Kilbride,
J.). That portion of his sentence is therefore void (Jackson, 199 Ill. 2d at
304 (Harrison, C.J., dissenting, joined by Kilbride, J.)) and may be
corrected at any time. People v. Arna, 168 Ill. 2d 107, 113 (1995).

More specifically, to hold that a sentence is void because it is not
authorized by statute under the facts of a case is no different, analytically,
from holding that a sentence is void because it is unconstitutional as
applied. In the former situation, we allow a defendant to challenge his
sentence. See, e.g., People v. Williams, 179 Ill. 2d 331, 333 (1997)
(challenge to a trial court's statutory authority to impose a particular
sentence not waived when a defendant fails to withdraw his guilty plea and
vacate the judgment). Justice, not to mention a consistent body of
precedent, dictates the same outcome in the situation at hand, where the
sentence is invalid because it is unconstitutional as applied. Jackson, 199
Ill. 2d at 306 (Harrison, C.J., dissenting, joined by Kilbride, J.).
Accordingly, despite the majority's conclusion in Jackson, defendant's
plea of guilty should not have resulted in a waiver of his right to have his
sentence vacated based on Apprendi.

Under these circumstances and for the foregoing reasons, I would
hold that defendant's challenge to his extended-term sentence was not
barred by his decision to plead guilty. Accordingly, I would affirm the
judgment of the appellate court, vacating the extended-term portion of
defendant's sentence and modifying his sentence to 60 years. I, therefore,
respectfully dissent.